"Often, you don’t have witnesses to a crime committed behind closed doors, and sometimes in the context of an intimate relationship. But what you may have are other victims, who can echo and corroborate a victim’s account of violence. This is critical because, even today, jurors come to court steeped in sexist biases — for example, that 'real' rape victims fight back physically against their attackers and report sex crimes immediately. These cultural prejudices cast doubt on the individual accuser. A group of accusers is harder to dismiss.... The central insight of the #MeToo movement has been described as 'the power of numbers across time' — in other words, the strength of a chain connecting one victim’s experience to another’s."
From "Weinstein’s Prosecutors Brought His Past Into the Courtroom. Good" by Tali Farhadian Weinstein, a former federal and state prosecutor in New York, and Jane Manning, director of the Women’s Equal Justice Project and former sex crimes prosecutor.(NYT).
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61 comments:
One accusation without evidence doesn't magically become evidence simply by multiplying it. There's still no evidence.
Also, if the prosecution can bring in multiple women to claim that a man is a rapist, why can't the defense bring up the accuser's history to show that she likely consented to the act?
"other victims, who can echo and corroborate a victim’s account of violence"
This assumes other victims are "victims." And "corroboration" here means person A experiencing something somewhere confirms person B experiencing something somewhere else. How convenient!
Question: what proportion of women going up to a man's, any man's, hotel room by themselves do not assume sex is going to be involved?
The #metoo movement is Pyrrhic. It has done far more harm, despite women thinking otherwise.
Winning battles but losing wars.
As a general rule, evidence of prior bad acts is not relevant to prove conduct on a specific occasion. There is a supposedly limited exception for evidence of habit, or perhaps a particularly unique MO. But if Weinstein met women thousands, or tens of thousands of times and supposedly did bad things a dozen times, that would not really be habitual. And for a Hollywood big shot to invite women to his hotel room and then come on to them is hardly unique. But I guess there has to be a "believe women" thumb on the scale somehow.
(In a similar vein, "post hoc, ergo propter hoc"reasoning has long been recognized as logically fallacious; but courts allow temporal order and proximity to be used to support claims of retaliation.)
His prior conviction is admirable in this current trial per Fed. R. Evid. 609(b). I wrote a law review article on it and United States v. Spero, 625 F.2d 779 (8th Cir. 1980). Spero was a Kansas City mobster who blew up something.
Why on earth haven't we banned sex?
Somewhat off topic, but in the spirit of “metoo#”, when can we go after his enablers? Such as Oprah or Billary?
The same logic used by the author to bring in the prior bad acts of the defendant would also over turn rape shield laws. After all, one of the issues in sex crimes trials is consent. It is a difficult issue to prove or disprove. The number of times a complaining witness has consented in the past, under the author’s logic, is relevant to whether she or he has consented on this occasion.
@Dave Bagley Under Fed. R. Evid. 609, the prior conviction is only admissible if the defendant testifies. If the person exercises his or her right to remain silent, the rule does not apply.
In my jurisdiction, the defendant can only be asked if he or she has ever been convicted of a crime and the number of times. There must be a hearing first to determine the number of admissible crimes. If the person gets the number wrong, the opponent can go into details. But that is only if the person gets the number wrong which was decided upon by the Court shortly before his or her testimony.
“…The power of numbers across time.” How poetic. How very convenient to sway the jury. How completely unscientific.
The predicate to this argument —that multiple allegations move the needle on whether anything bad ever happened— is that these reports be independently tested and found credible, with complainants not just following each other out of the woodwork (often after decades of silence: see Christine Blasey Ford) and reading each other’s testimony and saying “yeah! Me too!”
Strangely that very phrase —#MeToo— is the banner under which these people have freely chosen to rally and march. They find strength in numbers, so why should they care about the actual quality of the evidence? Quantity has a quality of its own. Crap multiplied by more crap is magically enhanced.
Again: I hold no brief for dirtbags but the worst rape here is of the judicial process.
@sebastian, answer: 100%. If the hotel room belongs to, say, Kobe Bryant. If the hotel room belongs to Harvey Weinstein, famous for his lechery, you are an extreme dumbass.
A corollary: in drunken sexual encounters resulting in “rape” regret, why is it that only the male is held accountable for his inebriated state?
Just do lunch, ladies, in a very crowded restaurant. Duh.
David Begley @ 8:36: .”…admirable…”? Maybe “admissible”?
So Weinstein's past can be used as 'evidence' but God forbid he brings up an accuser's history of sleeping around to prove that she is less selective when it comes to fucking?
Nice double standard you have there...
Rapist doesn't get off, Trumpster Incels hardest hit
Consider what Althouse has excerpted in light of the circus at the Kavanaugh hearings.
Every tool the supposed experts endorsed to bring justice to rape victims was used to defame, for political reasons, a supreme court appointee.
The writers (Weinstein and Manning) promote lesser standards to convict any person accused of sexual assault. This is bullshit. Don't all criminals prefer that their crimes be committed w/o witnesses? Would the NY Times ever print an op-ed with the title "Weinstein’s Defenderss Brought Her Past Into the Courtroom. Good."
Mike Pence is not worried.
"Sex crimes differ from other crimes both in how they happen and in what it takes to prove them."
Indeed. That is what Mariska Hargitay and the SVU are for.
I bet you didn't know that in the criminal justice system, the people are represented by two separate, yet equally important, groups: the police, who investigate crime; and the district attorneys, who prosecute the offenders.
Feminists don't want "equal justice" for women, they want special justice for women. Because feminism has proven that women are weaker than men and need special protection to allow them to operate in the world.
Feminism has simply rediscovered that what they call "patriarchy" was good for women.
"Why on earth haven't we banned sex?"
AWFLs are working on that. Prepare for "Women Hardest Hit" articles when they roll it out in 2030.
I suppose the same math could be used to prove innocence.
Eight women claiming they tried and tried to seduce him and he didn't take them up on it.
In Hollywood, eight women insist they got the role they desperately wanted after an interview with an administrative assistant in the room.
Whether it's true or not is, after the Clarence Thomas and Kavanagh hearings, irrelevant to the point of being ridiculous.
Sex crimes don't differ from "other" crimes in any substantial way. That's just special pleading by a weak woman.
After all, how many murders happen "behind closed doors" with no witnesses. Or even in broad daylight in the middle of an urban street with a dozen witnesses and none who will testify?
No difference from a sex crime. At least with a sex crime the victim can testify. Not the same with, say, murder or manslaughter.
Most sex crimes go unreported, as we are often reminded. What should be made explicit is that the reason most victims stay silent is due to one of two conditions: the victim is same-sex and incarcerated where a code of silence prevails (a stain on our justice system) OR the victim is too young to know how to report what happened.
A second shameful aspect of the failure of our system is the untested rape kits that some agencies allow to accumulate. DNA is the most powerful tool prosecutors have yet in some places thousands of open cases go unsolved for the simple reason that the tests are not processed. The excuse is usually weak: budget or personnel cuts etc. This predates the defunding movement and is getting worse.
So the reluctance of victims of assault to report likely has a lot to do with the fact the system shows little respect for rape victims. Even less so for a lass who tries to break into an industry famously reliant on a casting couch to “evaluate” talent.
Owen: Auto-correct mistake.
Chaswjd. You're right.
If Harvey had the looks of Hugh Grant….
United States v. Spero, "The appellant, Joseph J. Spero, was convicted by a jury 1Link to the text of the note of one count of conspiring to possess a destructive device not registered in the National Firearms Registration and Transfer Record, and one count of possession of such a device. 2Link to the text of the note During his trial, the district judge permitted counsel for the United States to cross-examine Spero, over his attorney's objection, about a 1957 conviction for grand theft."
Spero testified.
I was able to click through. CA has a law that admits this evidence. My federal citation was off-base.
"In California, though, when trying a case of sexual assault, prosecutors are allowed to tell juries about a defendant’s other sexual offenses, for many strategic reasons — including to argue that a defendant has a disposition or propensity to commit sexual assault. At Mr. Weinstein’s Los Angeles trial, prosecutors used this freedom to bring in four additional witnesses to establish a pattern of violent assaults."
Jurors still come to court with the 'sexist bias' that the defendant is innocent until proven guilty and that one person's word against another does not overcome reasonable doubt, even if one of them is a man and the other is a woman.
The chickens will come home to roost when Weinstein's convictions are thrown out because of this prosecutorial tactic.
a crime committed behind closed doors, and sometimes in the context of an intimate relationship.
ummm... doesn't That, describe MOST Murders? (look it up!)
Of course, with a murder, you don't get the whole; he said/she said.. Instead you get he said/she dead
Blogger Howard said...
Rapist doesn't get off, Trumpster Incels hardest hit
Another dullard with Trump living in his head.
"Believe all women" Brian Banks might disagree.
Howard said...
Rapist doesn't get off, Trumpster Incels hardest hit
Howard voted for Joe Biden who raped and molested Tara Reade.
Howard pretends his political opponents are as shitty as he actually is.
The NY Times would have lynched Tom Robinson.
This is typical NYT bullshit. I was a sex crimes prosecutor more than thirty years ago and the admissibility of "prior bad acts" subject to relevance and judicial approval, was the norm not the exception in most jurisdictions.
The other things they are whining about, including the sexism, prosecutors learned to deal with decades ago.
It is characteristic of the lefty victim classes, particularly womyn, that every bump in the road is new and huge, regardless of history.
I wonder if Warren Beatty would be convicted based on similar evidence.
@Chaswjd
609 is not the applicable rule. Weinstein's prior bad acts were admitted under 404(b)(2)
The shortsightedness and utter disregard for future second- and third-order effects of gratifying their demands are the essential hallmarks of most "feminists". I think that in years to come, women in general are going to look back at these "advocates" and see them as being worse than any supposed "patriarchy" ever was, in terms of damage to the real long-term interests of women in general.
OK, so let's consider: You want to bring in hearsay evidence of past misconduct? Great; lawyers for "rapists" are gonna love you long and hard with that, because you're opening the door for them to bring in the past acts of the supposed "victim" as well.
I used to be a rock-solid believer in whatever some woman told me about her sexual assaults. Then, I had to take part in several investigations while I was in the military, and the numbers just left me numbed, when it came to how many of those fairy tales were either entirely unfounded, or just plain wrong. Our local CID office was pretty clear about the rate of actual proven "Classic Rape" cases they saw, which were infinitesimal compared to the number of false cases brought for revenge, or "regret rape". I don't know what the actual rate of "military rape" is, but I'll guarantee you this much: It ain't nowhere near the amount reported by the various activists. Whose efforts have made it nearly impossible to deal with actual cases of actual rape, because the system is clogged with faked-up cases, and the investigators are so damn jaded that they'd have trouble believing a case if it was performed in front of them.
The wages of activism are inevitably the same as the one that "The Boy Who Cried Wolf" got. The eventual state is, nobody believes any accusations, even when they're fully fact-based and have good evidence.
None of this is going to end well for women in general. I can see the light of the oncoming train, and no matter how much you warn the idiots playing on the tracks, they won't get off of them.
See, here's something that all the so-brilliant activists and supposed "feminists" missed: Much of what was "ye olde Traditional" society was rooted in some hard biological facts, namely that women were, for whatever reason, members of a strongly sexually dimorphic species. I'm sure that there are good biological reasons for that, ones that we may not understand very well at present, but a lot of the old ways were there because time and harsh experience winnowed out the things which did not work, leaving those that did. And, most of those revolved around protecting women and the young, in return for which the male of the species got the wunnerful reward of always being expected to be the guy standing up on the outside of the wall, late at night, waiting to be the first thing eaten by whatever was out there. There was balance and good sense in a lot of the old traditional values and mores; we threw those out without stopping to consider why they were there, and like the idiot Chesterton had to deal with, nobody stopped to observe and consider before throwing over the old order.
We're living in the denouement of that era, trying to re-invent the wheel. It's not gonna be all that easy, and I suspect that when it all settles out, whatever working society gets cobbled together out of today's wreck is going to look a lot more like "the old days" than ours.
Also, if the prosecution can bring in multiple women to claim that a man is a rapist, why can't the defense bring up the accuser's history to show that she likely consented to the act?
Mr. Wibble asks a very good question. Moreover, if any woman has ever been found to have made a false rape allegation, that should be admissible and should taint her testimony in a later rape trial.
“The central insight of the #MeToo movement has been described as 'the power of numbers across time' — in other words, the strength of a chain connecting one victim’s experience to another’s."
Exactly. That is how we know alien abductions are real.
I thought that there were no more women. Or men for that matter. Just people. People who menstruate and people who don't. At least not yet. Would the definitions of rape and consequent prosecution be the same as it currently is? People want to know.
" Moreover, if any woman has ever been found to have made a false rape allegation, that should be admissible and should taint her testimony in a later rape trial get her prosecuted for perjury with a minimum jail sentence.
takirks@12:25: Awesome comment. Because it combines clear forceful argument with interesting and relevant data from personal experience.
What I dislike most about the activists urgently overselling their agendas is (1) they can’t concede anything and in typical PoMo Marxist fashion they must always “recontextualize” (read: ignore any countervailing evidence) and evade intellectual responsibility and (2) they are so damn angry and bitter that they cannot be reasoned with; and are frankly boring. They are hooked on their little mission and —spoiler alert— they will never be happy.
Not sure how we get past this —wymyn are still surfing a big PC wave and IMHO it will take decades to abate— but eventually Nature will have her way.
Howard is the same guy who would always post his lame a$$ website link here. He just changed his name. Prevous name evades me ......for now. Black guy in a white shirt.
Same M.O. as Mark Eric Dyson. Use 10 words when 5 will do.
If Harvey had the looks of Hugh Grant….
...He wouldn't have had to use the promise of fame to get some action.
I wonder if Warren Beatty would be convicted based on similar evidence.
See above.
Interesting note on Beatty. He and his sister Shirly MacLaine are the rare situation of siblings who made it in Hollywood without having parents in the biz first. Hollywood is a lot about connections, I wonder if they had some? Or did Beatty sleep with Grant (Cary). Shirly was quite a looker in the day with her dancer's physique.
even today, jurors come to court steeped in sexist biases — for example, that 'real' rape victims fight back physically against their attackers and report sex crimes immediately.
Or, jurors come to court with the utterly rational beliefs that the physical results of physical resistance is actual evidence of non-consent, and that accusations reported immediately are less likely to be cold-blooded lies.
"[I]n other words, the strength of a chain connecting one victim’s experience to another’s." Expressed differently, it's evidence of the defendant's conduct apart from the crime alleged, which is supposed to be inadmissible for the purpose of proving the defendant's conduct as to the crime being litigated. You want to bring back the "she's a slut" defense to rape charges? Keep this crap up and you'll find out.
William said...
I wonder if Warren Beatty would be convicted based on similar evidence.
12/20/22, 12:07 PM
Or Jack Nicholson.
Guys, the rules of evidence don't work the way you think they work.
Butkus51 - rhymes with Jack.
The problem with untested rape kits is that you need a prospective perp. You have the actual perp's DNA but you don't have him. But to whom do you compare the DNA? Until you get a likely suspect....nobody.
This is modified by a growing DNA database, and a newer kind of ancestry dot com where, with sufficient people in a family cooperating by providing DNA, the likely individual might be discovered, even if nobody in the family suspected, or knew about, him.
But then you run into paternity fraud, maybe back a couple of generations, missing links.
But, until you have a likely suspect in hand, there's nobody to compare the rape kit to.
I think I agree with Hardin’s oft-stated position on the topic of sex crimes: that since female sexual virtue is no longer a social and personal asset, and a rape cannot take away the social value of a woman anymore like it used to, perhaps it’s time to consider it simply assault.
Now because I do not have autism unlike Hardin (no offense buddy; two of my kids are Aspies and they’re great) I can see that while that makes perfect logical sense it will never be seen that way by normies and will never happen.
Next evolutionary step in criminal justice and prosecution could be attached to Musk's Neuralink device. Once perfected it would be used as originally intended to manage neurological disorders and control computers with thought. Neat! But why stop there! Neuralink
2.0 could enable prosecutors to search the minds of people (only likely guilty people I'm sure!) and discern a person's guilt or innocence by downloading the truth. Or what serves the State as truth. No need for pesky physical evidence or emotional pleas by the allegedly injured. Maybe Neuralink 3.0 will provide images to go along with the forcibly attained confessions. Hollywood style entertainment! Of course Neuralink could be hacked and altered but that's really no different than what the State does currently. What a glorious future with instant justice. What's not to like? It's better than science fiction!
Didn't these prosecutorial wizards go one for four against Harvey?
So the jury thought that at least 3 of the women were...not credible?
Sheridan,
Currently, suborned perjury and withheld exculpatory evidence leave very little trace. Would your 2.0 model be as discreet?
Politically congruent ("=") rites over a transgender spectrum.
When first you perform human rites for social, redistributive, clinical, political, and fair weather causes, the progressive path and grade is the forward-looking expectation. You've come along way, baby.
That said, men, women, and "our Posterity" are from Earth. Feminists are from Venus. Masculinists are from Mars. Social progressives are from Uranus.
2.0 could enable prosecutors to search the minds of people... Or what serves the State as truth.
Minority report in a nationalist or transnationalist Marxist/communist/socialist/fascist/democratic/dictatorial state. One step forward, two step backward.
how many murders happen "behind closed doors" with no witnesses
murder (n.)
"unlawful killing of another human being by a person of sound mind with premeditated malice," c. 1300, murdre, earlier morþer, from Old English morðor (plural morþras) "secret killing of a person, unlawful killing," also "mortal sin, crime; punishment, torment, misery," from Proto-Germanic *murthran (source also of Goth maurþr, and, from a variant form of the same root, Old Saxon morth, Old Frisian morth, Old Norse morð, Middle Dutch moort, Dutch moord, German Mord "murder"), from suffixed form of PIE root *mer- "to rub away, harm" (also "to die" and forming words referring to death and to beings subject to death).
There is the loophole: "unlawful" abortion. Privacy, when you can get away with it. That said, throw another baby on the barbie, we've been here before, again, and again, and again, it's over.
@azbadger I was responding to an earlier claim that prior convictions have always been admissible. I was not addressing how Mr. Weinstein’s prior had acts got into evidence.
Not near as hard to prove as voter fraud, though. The crime where, all it takes is to miss a step, and then there's no evidence.
Achilles said...
"Howard said...
Rapist doesn't get off, Trumpster Incels hardest hit
Howard voted for Joe Biden who raped and molested Tara Reade.
Howard pretends his political opponents are as shitty as he actually is."
He's funny. The harder he tries to 'lefty man up' the more ridiculous he makes himself. He doesn't have the chops to defend anything he believes in. Hence the stupid snark. It really makes you treasure somebody like Christopher Hitchens. RIP.
Weinstein's case explores the grey zone between rape and prostitution.
Arguably, an act of prostitution is never willful, particularly when the victim says is wasn't willful ten years later.
Arguably, an act of prostitution is never rape, with the exception of when the victim tries to end the deal and the perp persists. That's not the usual case.
Nah. The failure to report or late reporting cases are typically date / acquaintance rapes. Where the suspect is known there is no need for DNA evidence. If a woman gets dragged into the bushes and rape, the odds are pretty good she will report it. The rape kit will get tested in 100 out of 100 stranger rape cases
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